The Dharun Ravi verdict does little for other Tyler Clementis

Is the hate crime law used to prosecute Rutgers student Dharun Ravi really the best way to tackle society's casual homophobia?

Former Rutgers student Dharun Ravi faced 15 charges, including invasion of privacy, bias intimidation and witness tampering, following the death by suicide of his room-mate Tyler Clementi. Photograph: Kathy Johnson/AP

Note that Ravi was not accused of physically injuring Clementi, or of attempting to. But since the jury has now found that, on various counts, Ravi did intend to expose and harass his roommate because Clementi was gay, he could spend a decade behind bars – the kind of sentence a convicted killer might get.

"If all Ravi did was film Clementi in bed with another man, it's a minor offense. If he did so in order to harass Clementi for being gay, he could get 10 years in prison."

New York Law School professor Susan Abraham, a former New Jersey public defender, told the Star-Ledger that a sentence like that is usually "associated with an assault or murder … where it's much more clear that you're trying to hurt somebody, physically." Ravi's lawyers wrapped up their arguments in his defense Tuesday, and after his conviction Friday, he now awaits sentencing. But it's likely the public debate stirred up by his trial – about whether or not hate crime laws are too extreme – will continue for a long time to come.

The defense relied largely on witnesses who testified that they'd never heard Ravi speak poorly of gay people. That's not to say Ravi, who didn't take the stand himself, came off as a real sweetheart, or even that it was perfectly clear that he's not homophobic. One student testified that Ravi texted about wanting to "keep the gays away"; the jury also learned that Ravi used the word "fag" in another message. Nonetheless, I feel for the kid – who also texted Clementi, after hearing he'd requested a room change, to say, "I've known you were gay and I have no problem with it."

Ravi came across as immature, over-privileged, and offensive, certainly. But is he a gay-basher? I'm not sure. And yet, even that question might be beside the point.

Let's leave alone the matter of Ravi's state of mind during the time when he was filming and tweeting about Clementi. (My guess is that he was, at least, somewhat fascinated by homosexual activity; also that he was enough of a doofus that he likely would've teased an awkward straight roommate, if he didn't like the guy, in a similar way.) Let's consider, instead, if he was tried for hate crime, or thought crime.

The FBI notes on its website: "Hate itself is not a crime, and the FBI is mindful of protecting freedom of speech and other civil liberties." Indeed, thought should always be protected, like it or not. As Andrew Sullivan wrote, in an oft-cited 1999 essay for the New York Times Magazine:

"[V]iolence can and should be stopped by the government. In a free society, hate can't and shouldn't be. The boundaries between hate and prejudice and between prejudice and opinion … are so complicated and blurred that any attempt to construct legal and political fire walls is a doomed and illiberal venture."

And yet hate itself does seem to be precisely what's at stake here: Ravi's verdict turned on the pivot of whether or not hatred of gay people prompted his behavior.

In its 1993 Wisconsin v Mitchell decision, the US supreme court unanimously found that hate crime legislation doesn't violate the first amendment, as Sullivan and others worry that it does. Chief Justice William Rehnquist wrote in his opinion:

"In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors … including a defendant's motive for committing the offense. While it is equally true that a sentencing judge may not take into consideration a defendant's abstract beliefs, however obnoxious to most people, the constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because they are protected by the first amendment."

Rehnquist's argument notwithstanding, I assume sentencing decisions are affected by the length of the allowable sentence. When a longer possible sentence is the anchor, my guess is that it leads to longer sentences, on average. And in the Ravi case, the possible punishment – of ten years – seems to far outweigh the crimes.

Hate crime perpetrators are understandably perceived by many as terrorists, of a sort, who intimidate and harass whole communities. Laws aimed at them are meant to dissuade other haters from committing similar acts of violence against embattled groups – although it's not clear that hate crime legislation has a deterrent effect. In practice, though, the vast majority of these kinds of acts are not carried out by thugs who belong to hate-fomenting organizations.

"Most hate crimes are carried out by otherwise law-abiding young people who see little wrong with their actions," as the American Psychological Association put it in a 1998 position paper. "Alcohol and drugs sometimes help fuel these crimes, but the main determinant appears to be personal prejudice … [which] blind[s] the aggressors to the immorality of what they are doing." The APA goes on to note that many hate crime perpetrators believe "that society sanctions attacks on certain groups":

"For example, Dr Karen Franklin, a forensic psychology fellow at the Washington Institute for Mental Illness Research and Training, has found that, in some settings, offenders perceive that they have societal permission to engage in violence against homosexuals."

Obviously, making it clear that society strongly disapproves of such behavior is crucial. But is a lot of jail time in a handful of cases an effective way to overcome prejudice that remains, unfortunately, all too widespread? In a recent New York Times forum, James Jacobs, a professor at New York University school of law and co-author of Hate Crime: Criminal Law and Identity Politics, argues that, if anything, longer sentences only exacerbate the problem:

"In the 1980s, proponents of the original bias crime laws said they meant to go after murderous plots by members of neo-Nazi and similar hardcore hate groups. Now, bias crime prosecutions most often involve young defendants, frequently mixed-up teenagers, who commit low-level offenses like criminal mischief and simple assault, typically escalating from spontaneous altercations at a party …

"Minority and liberal advocacy groups argue that [hate] laws reinforce anti-discrimination values. But these laws also conflict with liberals' opposition to over-use of criminal law and especially over-incarceration. Sending more people to prison for longer is hardly likely to contribute to a more tolerant society. To the contrary, jails and prisons are breeding ground for hate groups."

I have to wonder whether punishing a kid like Dharun Ravi after the fact is just; or, moreover, whether it will do anybody any good. Both Clementi and Ravi were impacted, albeit in different ways, by a society that is still far too accepting about the use of anti-gay language.

Rather than ruining the life of another impressionable young man, a better way to effect real change at Rutgers – and the nation at large – might be to work on changing the culture. More education and advocacy efforts aimed at enabling students better to understand sexual orientation, at training teachers about how to respond to anti-gay slurs in their classroom, and at getting gay youth (and their parents) to accept their sexuality, might be a more prudent and useful way to foster a less prejudiced society.

To help prevent tragic events like Clementi's suicide in future, we should make it our responsibility to tell any loudmouths we happen to encounter at the laundromat, or the gym, or the corner market, or at a family gathering, that we don't approve of their hateful language. If only one of Ravi's buddies had called him out for using the word "fag", maybe this sad story would've had a different ending.